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In re Commitment of Dunsmore

Court of Appeals of Texas, First District

May 21, 2019

IN THE COMMITMENT OF RICHARD A. DUNSMORE, Appellant

          On Appeal from the 412th Judicial District Court Brazoria County, Texas Trial Court Case No. 84023-CV

          Panel consists of Justices Lloyd, Kelly, and Landau.

          MEMORANDUM OPINION

          PER CURIAM.

         Appellant, Richard A. Dunsmore, attempts to appeal the trial court's February 7, 2018 order denying his unauthorized petition for release. This Court notified Dunsmore of our intent to dismiss for lack of jurisdiction and invited a response establishing that this Court has jurisdiction. Dunsmore filed a response but has not demonstrated that we have jurisdiction. We dismiss the appeal for lack of jurisdiction.

         Background

         Richard Dunsmore was convicted of sexual assault and attempted sexual assault and sentenced to 7 years in TDCJ, and this Court affirmed the conviction. See Dunsmore v. State, No. 01-10-00981-CR, 2012 WL 1249418 (Tex. App.- Houston [1st Dist.] Apr. 12, 2012, pet. ref'd). Six months before his scheduled release date, the State petitioned to have him civilly committed under the Sexually Violent Predator statute. See Tex. Health & Safety Code § 841.003. After a jury trial, he was adjudicated a sexually violent predator. The statute provides for appeal from an order determining status as a sexually violent predator, and Dunsmore appealed that order to our Court. See In re Commitment of Dunsmore, 562 S.W.3d 732, 736 (Tex. App.-Houston [1st Dist.] 2018, no pet.) (affirming).

         Dunsmore then filed an "unauthorized petition for release," which the trial court denied on February 7, 2018, concluding that the petition was frivolous and that Dunsmore had not shown probable cause that his "behavioral abnormality has changed such that he is no longer likely to engage in a predatory act of sexual violence." Dunsmore seeks to appeal this order.

         Lack of Jurisdiction

         To determine whether we have jurisdiction over the denial of Dunsmore's unauthorized petition for release, we must turn to Chapter 841 of the Health and Safety Code. When construing statutes, our primary objective is to give effect to the Legislature's intent as shown by the statutory text. See Colorado Cty. v. Staff, 510 S.W.3d 435, 444 (Tex. 2017). If the text is clear, the text is determinative of the Legislature's intent. See id. When considering the language of the particular statutory provisions at issue, we do not consider them in isolation but view them in the context of the statute as a whole. See Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 562 (Tex. 2014).

         The statute provides for appeal from the initial determination that a person is a sexually violent predator. See Tex. Health & Safety Code § 841.062(a). Once a sexually violent predator is committed, Chapter 841 provides for periodic commitment reviews. For example, Section 841.101 provides for a biennial examination. Id. § 841.101(a). Chapter 841 also includes provisions for the filing of two types of petitions for release: authorized and unauthorized. See id. §§ 841.121, 841.122.

         Dunsmore filed an unauthorized petition for release. The statute does not provide for an appeal of the trial court's ruling on an unauthorized petition for release, or of any trial court ruling other than the initial determination of sexually violent predator status. Courts have addressed appeals of orders under the sexually violent predator statute, other than initial commitment orders, and generally determined that they are interlocutory and not appealable. See In re Commitment of Adams, 408 S.W.3d 906, 909 (Tex. App.-Beaumont 2013, no pet.) (dismissing appeal from order modifying commitment order as interlocutory and not appealable); In re Commitment of Cortez, 405 S.W.3d 929, 932, 936 (Tex. App.- Beaumont 2013, no pet.) (dismissing appeal of modification order because statute does not provide for appeal, order contains no finality language, and further holding that appellant had not shown himself entitled to mandamus relief); In re Commitment of Richards, 395 S.W.3d 905, 909-10 (Tex. App.-Beaumont 2013, pet. denied) (dismissing appeal from order after biennial review as interlocutory and not appealable because the order did not follow trial on the merits or reflect trial court intent that order was final).[1]

         One court has ruled on the appealability of an order denying an unauthorized petition for release and concluded that it is a final appealable judgment. See In re Commitment of Keen, 462 S.W.3d 524, 526 (Tex. App.-Beaumont 2015, no pet.). In reaching its decision, the court determined that the order concluded a "discrete phase of the [sexually violent predator] proceeding" and disposed of all parties and claims. Id.

         A determination that a ruling is a final judgment because it concludes a "discrete phase" is a unique exception to the "one final judgment rule" that has been applied in probate and guardianship cases to permit appeals of discrete issues. See In the Guardianship of Macer, 558 S.W.3d 222, 226 (Tex. App.-Houston [14th Dist.] 2018, no pet.); In re Guardianship of Miller, 299 S.W.3d 179, 184 (Tex. App.-Dallas 2009, no pet.). This probate and guardianship exception to the "one-judgment rule" has been held to be "necessary because of the need to 'review controlling, intermediate decisions before an error can harm later phases of the proceeding.'" Miller, 299 S.W.3d at 184 (quoting De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006)). The exception has also been applied to discrete orders in receivership proceedings. See Art Inst. of Chicago v. Integral Hedging, L.P., 129 S.W.3d 564, 571 (Tex. App.-Dallas 2003, no pet.) (citing to Huston v. FDIC, 800 S.W.2d 845 (Tex. 1990)).

         Keen appears to be the only case to extend this exception to an order concerning a sexually violent predator, and the Keen court does so without explanation or authority. Absent any discussion or citation to authority supporting extension of this unique exception to an order under the ...


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